Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 211

NUMÉRO SPÉCIAL AFRIQUE
associated financing agreements. This, in addition to the actual and perceived
advantages of English courts, has contributed to establishing English courts as
the natural or default forum for banks to resolve disputes that arise under these
financing agreements. However, if African development and regional banks
continue to take a lead role in the financing of large-scale projects, and whether
such banks continue to agree to English law as the governing law of the financing
agreements or opt for a different law, international arbitration is likely to emerge
as the more neutral and acceptable dispute resolution method in the eyes of all
involved parties.
African Banks could be tempted to look inward and consider courts in Africa
as an alternative to English courts. The reality, however, is that although the rule
of law and the independence of the judiciary have progressed across Africa,
African courts have not yet garnered enough confidence to convince users within
and outside Africa to entrust them with the determination of complex and multijurisdictional
disputes. Against this background, arbitration appears as the only
credible dispute resolution method. A further indication of the African banking
sector's favourable disposition towards arbitration is that, unlike certain western
banks, African banks do not seem to preclude the use of arbitration in their policies,
nor do they otherwise display categorical opposition to arbitration. This author is
not aware of any empirical or anecdotal evidence suggesting the opposite. It seems
reasonable, therefore, to reach the preliminary view that African banks are leaving
open the possibility of international arbitration playing an important role in the
resolution of disputes in which they will be involved.
Conclusion
As banks in sub-Saharan Africa enter the next stage of their development path,
they will, among other things, seek to expand their activities beyond traditional
banking, increasingly engage with other financial services industries, accelerate
technology adoption to reduce operation costs and diversify banking services, face
intensifying competition both from within and outside Africa, navigate mounting
regulations. In short, in their role as indispensable enablers of economic growth,
African banks will gradually be involved in most drivers of economic activity and,
as part of that process, engage with various economic stakeholders, including
partners, competitors and regulators. With that inevitably comes the potential for
growing disputes, which the undersigned believes will be resolved primarily by
way of international arbitration. In fact, African banks seem well positioned to
accelerate the adoption of arbitration as a dispute resolution means by the banking
industry and the broader financial sector. Western banks and commercial courts
in the major financial centres seem to have become old couples, often reluctant to
part company. Recent innovations in international arbitration to address its actual
or perceived limitations for financial disputes seem to have limited success in
swaying banks in the western world. By contrast, the banking industry in Africa
is at an early stage of its development and has not yet developed any entrenched
habits regarding the resolution of disputes. It is therefore open to players in that
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Revue - Les Cahiers de l'Arbitrage N°2 - 2023

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